federal buildings, national parks, etc., in so far as is necessary for the fulfillment of the purposes for which they were acquired; (c) planning power in so far as incidental to power over matters which by the Constitution are of federal concern, such as interstate commerce, navigation, and post roads, which now includes railroads; (d) power of experimenting, collecting and disseminating information and giving advice to state and local authorities and to individuals in their planning. This power is not given the nation by any specific provision in the Constitution, but is held to be inherent in the national, as in every government. It is therefore also a power of the state and local governments; but many things can be done under such a power more completely and effectively and more economically by the nation in behalf of all the states, than by each state for itself. The United States government has made little use of its planning powers. Except as possessed by the United States, and to some extent concurrently with it when the Federal government has jurisdiction, planning power over territory within the limits of each of the individual states is in that state to be exercised by it, or delegated to local governments within it as it sees fit. Interstate and International Planning.-Interstate or international planning is the planning of enterprises or territory common to more than one state or nation, such as the bridging of a stream flowing between two sovereignties, or the regulation of its flow, the planning of a city or region on both sides of the boundary, etc. In centralized countries, such as England, there is no interstate, as distinguished from international, planning; while in federal countries the limitations of the federal constitution on the powers of the "sovereign" states to a greater or less extent differentiate the two. Interstate and international matters may be adjusted by agreement, managed by joint commissions, etc., but such methods, sufficient for the accomplishment of a definite enterprise limited in time, are most unsatisfactory where continuous development and administration for the indefinite future are necessary. In a few such cases, as for instance for the improvement of the navigation of the Danube, international agreement has established a continuing local government, and there is reason to think that the same expedient may be adopted in interstate planning of a similar character; indeed such an authority for the port of New York, located partly in the state of New York, partly in the state of New Jersey, has already been appointed by the two states, in the solution of the difficult and important administrative problem without which the planning of the port as a unit seems impossible.3 City Planning Law.-City planning law is the law relating to city planning matters. The subject will be taken up under the following heads: I. General Principles. II. Planning the City as a Whole. III. Planning the Public Features, such as the streets, parks, etc., and including the quasi-public features, often privately owned, but always subject to public regulation, such as street railways, water works, etc., etc. IV. Planning the Private Features, such as the land privately owned and used, and the buildings to be erected on it, in some of their more general aspects. V. City Planning Finance. VI. Planning for the Promotion of Beauty. 3 See p. 548. CHAPTER II FUNDAMENTALS Basis of Right of Public to Plan.-A city consists of land assigned to streets, parks and other public purposes, and of land devoted to houses, stores, factories and similar private purposes. To the attainment of unity in city construction, which is the aim of city planning, some measure of control over all this land, whether publicly or privately used, is necessary. This guidance the state may exercise in two ways: by government ownership and by governmental regulation. The legal principles under which this ownership and regulation are obtained are fundamental in city planning law. Planning by Right of Ownership of Land.-It is by virtue of its title to the land that the public plans the public features of cities. In order to construct these features the public must own the land necessary for the purpose and, once owning it, may build these features much as it sees fit. As land owner the public also indirectly but profoundly influences private development. For instance, the method of subdividing land is an important factor in determining its use. Thus if the lots in a residential area are deep and narrow, the houses on them are usually narrow or there are houses both on the front and the rear of the lot, and in either case the supply of light and air is almost invariably insufficient. With wide, shallow lots these particular evils are not so apt to occur. Again, a district of large lots is better fitted and therefore more likely to receive heavy industrial development, a section of small lots to be chosen for other uses. Now it is the layout of public streets which, by fixing the size and shape of blocks, is the most important factor in land subdivision. So too in various ways private use of land is strongly influenced by the location and method of construction of other public features such as parks, docks, and public buildings. The Power to Condemn Land.-As a rule the land which the public owns in a city is already devoted to some specific public purpose, and the city as it grows must acquire the land for its public features from private owners. Manifestly the power of the public by land ownership directly to control the public features of the city and indirectly to influence its private features, is dependent upon the right to acquire this land. Like the private citizen the state may do this by agreement with the owner. In order, however, that public improvement may not be hampered by private greed or whim, it is essential that the state should be able to "condemn" the land it needs, taking it without the consent of its proprietor. This right of "eminent domain," as it is called, is the first legal power fundamental in city planning to be examined and related to the law as a whole. The Power to Regulate the Use of Land Privately Owned.-Deeply as the public, by virtue of its control as land owner over the city's public features, influences the development of land privately owned, it is not in this way exercising any power beyond that possessed by any land owner similarly situated. Frequently the proprietor of an extensive tract lays it out in streets, parks and other features public in character, and in lots for industrial, residential and other uses essentially private. Occasionally-as, notably in Letchworth, Hampstead, and other garden city and garden suburb developments-this has been done for the purpose of affecting the private use of land in those localities; and, in fact, has had this result to a marked extent. Except, however, as the garden city companies retain some degree of ownership in the land which has passed into private uses-as they often do this influence is all the power that the company has over private use. Unlike the private citizen or company, the public is not so limited. It is also ruler, and by law and ordinance may directly control private land and the persons using it. And we are beginning to see the need of this direct control and to avail ourselves of it. In spite, in some cases, of adequate planning of public features, cities become congested and confused, and we are learning to rely upon building regulations to remedy, or at least check, these tendencies. This power of regulation in the public interest, called the "police power," is the second of the two powers fundamental in city planning which it is the function of this work to examine and relate to our law as a whole. In this undertaking it will be necessary at the outset somewhat more accurately to define and distinguish between the power of eminent domain and the police power. Eminent Domain.-Eminent domain is the power of the state to take the property of the private citizen. In all civilized countries it is exercised only for a public purpose, on payment of compensation. Manifestly the state exists for the good of its citizens and should not take property or do any other act except for the public advantage—it is only in a despotism that the monarch seizes property for his own use or to reward a favorite. Manifestly, too, the state should pay for the property it needs, making its levy for this purpose as equally as possible upon all its property owners instead of upon one. The manner of securing the enforcement of these conditions upon the exercise of the power of eminent domain differs in this and in other countries. In England, for instance, Parliament has the power to pass any law it pleases and is only restrained by public opinion. On the continent of Europe these conditions are generally contained in fundamental law, but the duty of guarding that law is entrusted to the legislature.1 In this country not only are these requirements in our Thus the French "Declaration of Rights" of 1791, inspired by the bills of rights in our constitutions, contained much the same guaranties, including the guaranty of private property rights; and these guaranties are, expressly or by implication, a part of all subsequent French national constitutions, which the French legislator in his acts is in duty bound to respect, and does respect. See in general Baltbie, Droit Public et Administratif (2d ed., Paris, Larose and Furcel, 1885), and similar books; and also the Civil Code, art. 545. In Germany, too, under the constitutions in force before the war, the rights considered by us as fundamental, including the right of private property, are guaranteed by provisions which as a rule are more difficult of legislative enactment and repeal than the usual provisions of law. They were contained in the national constitution of 1849; but not that of 1871, since they were to be found in the constitutions of the individual states. In so far as the pre-war constitutions have been superseded, the new provisions almost invariably protect private property. Many of these constitutions, if they may be so called, do not seem as yet to have been put in |